Iannello & Iannello (No.5)
[2020] FCCA 589
•23 March 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| IANNELLO & IANNELLO (No.5) | [2020] FCCA 589 |
| Catchwords: FAMILY LAW – Parenting – parental responsibility – whether the mother should have sole parental responsibility – competing applications for who the children should live with – child’s spend time arrangements between the parents – best interests of the child – finding of psychological harm and emotional abuse – where the husband has mental impairment impacting his ability to care for the children. FAMILY LAW – Property – just and equitable to alter the parties’ property interests – parties unable to provide an agreed asset and liability statement – where parties have had several withdrawals since separation – where much of the asset pool has been depleted – where the husband received a total and permanent disability payment as a result of a workplace injury – where the husband withdrew from his superannuation early – notional addback of property to the asset pool. |
| Legislation: Accident Compensation Act1985 (Vic) Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 64B, 65D,75, 79 Federal Circuit Court Rules 2001, r.21.02(1)(c) |
| Cases cited: Beklar & Beklar [2013] FamCA 327 |
| Applicant: | MS IANNELLO |
| Respondent: | MR IANNELLO |
| File Number: | MLC 3008 of 2018 |
| Judgment of: | Judge C E Kirton QC |
| Hearing dates: | 19 - 22 November 2019 and 12 December 2019 |
| Date of Last Submission: | 12 December 2019 |
| Delivered at: | Melbourne |
| Delivered on: | 23 March 2020 |
REPRESENTATION
| Counsel for the Applicant: | Ms Smallwood SC |
| Solicitors for the Applicant: | Marshalls + Dent + Wilmoth |
| Counsel for the Respondent: | Mr Williams |
| Solicitors for the Respondent: | Bayside Family Law Solutions |
| Counsel for the Independent Children's Lawyer: | Mr Ham |
| Solicitors for the Independent Children's Lawyer: | Leslie Family Law |
ORDERS
Parenting Orders
All prior parenting orders in relation to X, born in 2005 (X) and Y, born in 2008 (Y) (together the Children) be discharged.
Parental Responsibility
The Applicant Wife, Ms Iannello (Wife) have sole parental responsibility for X and Y, provided always that the Wife keep the Respondent Husband, Mr Iannello (Husband) informed of significant long term decisions that she makes in relation to the Children and actively seeks the Husband’s input on such issues.
For the purpose of order 2:
(a)Before any such long term decisions are made in respect of X and/or Y:
(i)The Wife shall advise the Husband by email of her proposal relating to X and/or Y; and
(ii)If the Husband wishes to comment on the Wife’s proposal (or if the Husband has any proposal he wishes to make relating to X and/or Y on this issue) he shall, within seven (7) days after the date of the Wife’s email, advise the Wife by one email (to the email address from which the Wife sent her communication) of his views;
(iii)Upon receipt of any comment or proposal by the Husband, the Wife shall give consideration to the Husband’s views;
(iv)After the Wife has considered the Husband’s comments, she shall make a decision and advise the Husband by email or SMS text message of the outcome immediately after making that decision; and
(v)If the Husband does not respond by email as provided in order 3(a)(ii), the Wife shall be entitled to presume that the Husband does not wish to be involved and she may decide the issue.
Living Arrangements and the Time the Children Spend with the Parents
The Children live with the Wife.
Term Time
The Children spend time with the Husband:
(a)Commencing from 24 April 2020, from after school on Friday (or 4:00 pm on a non-school day) to before school on Tuesday (or 9:00 am on a non-school day) each alternate week thereafter.
(b)Such further and other times as may be agreed between the parties in writing.
Orders 4 and 5 be suspended as necessary to facilitate the Children spending time with the parents pursuant to orders 7 and 8.
School Holidays
The Children spend time with the parents during school holidays as follows:
(a) During the Term 1 Victorian gazetted school holidays:
(i)With the Wife for the first half and the Husband for the second half in 2020 and each alternate year thereafter;
(ii)With the Husband for the first half and the Wife for the second half in 2021 and each alternate year thereafter;
(iii)Save that the first half is extended to 9:00 am on the Tuesday after Easter Monday where the Easter period falls across the first and second halves of the holidays.
(b)During the Term 2 and 3 Victorian gazetted school holidays:
(i)With the Wife for the first half and the Husband for the second half in 2020 and each alternate year thereafter;
(ii)With the Husband for the first half and the Wife for the second half in 2021 and each alternate year thereafter.
(c)During the long summer vacation as gazetted by the Victorian Government for half of the holidays as agreed between the parents and in default of agreement:
(i)In 2020/2021 and each alternate year thereafter:
A. For the first half with the Wife;
B. For the second half with the Husband.
(ii)In 2021/2022 and each alternate year thereafter:
A. For the first half with the Husband;
B. For the second half with the Wife.
(d)Such further or other times as may be agreed between the parties in writing.
For the purposes of order 7:
(a)The number of nights in any school holiday period includes the first night upon the conclusion of school and the last night before the commencement of school.
(b)Where that is an odd number of nights, the additional night is allocated to the first half.
(c)Changeover is to occur at 9:00 am on the day immediately following the last night of the first half.
Special Days
The Children spend time with the parents as follows:
(a)At Christmas:
(i)In 2020 and each alternate year thereafter:
A.With the Wife from 12:00 pm on 24 December to 12:00pm on 25 December;
B.With the Husband from 12:00 pm on 25 December to 12:00 pm on 26 December.
(ii)In 2021 and each alternate year thereafter:
A.With the Husband from 12:00 pm on 24 December to 12:00 pm on 25 December;
B.With the Wife from 12:00 pm on 25 December to 12:00 pm on 26 December.
(b)With the Wife at Orthodox Christmas, from 4:00 pm on Christmas Eve to 4:00 pm Christmas Day.
(c)With the Wife from after school on Friday to before school on Monday on the weekend of the Orthodox Easter, provided that order 7(a)(iii) will prevail in the event of a conflict.
(d)With the Wife on Mother’s Day from 10:00 am until 6:00 pm.
(e)With the Husband on Father’s Day from 10:00 am to 6:00 pm.
(f)Such further or other times as may be agreed between the parties in writing.
Changeovers
When school is not available as a changeover venue, the parent with whom the Children are concluding their time shall deliver the Children to the residence of the other parent.
Communication with the Children
Pursuant to s.68B(1) of the Family Law Act 1975 (Cth) the Husband be and is hereby restrained by injunction from:
(a)Initiating communications to or accepting communications from, the Children while the Children are not spending time with him.
(b)Doing any act or thing to prevent the Wife from communicating with the Children or to discourage the Children from accepting communication from the Wife, while the Children are spending time with him.
The Wife be at liberty to communicate with the Children at all reasonable times.
In the event that either of the Children are unable to be located by the parent with the care of the Children pursuant to these orders, or if either of the Children attempts to remove themselves from the care of the parent that is specified in these orders:
(a)The parents communicate immediately and exchange information for the purpose of locating the child or the Children.
(b)Each parent be authorised to contact the child or children by telephone or any other reasonable means to enable the child or the children to be returned to the parent who has the care of the child or the children pursuant to these orders.
(c)Each parent do all acts and things reasonably necessary to locate and return the child or the Children.
AND THE COURT NOTES THAT this order operates as an exception to order 11.
The parents notify each other of any changes to their telephone numbers, email addresses or residential addresses within 24 hours of any change.
Restraints on Parents
If during the Children’s time with one parent (first parent) pursuant to these orders, the Children or either of them attend the home of the other parent or any other place where the other parent may be from time to time, the other parent do all acts and things necessary to return the child or the Children to the first parent immediately.
The Husband and the Wife and their servants and agents are hereby restrained from:
(a)Abusing, belittling, insulting or otherwise denigrating the other parent, their relatives or friends within the presence or hearing of the Children.
(b)Commenting, discussing, or referring to any part of the family law proceedings, including communications, negotiations, or showing any documents from these proceedings, or allowing any other person to do so within the presence or hearing of the Children.
(c)Encouraging the Children not comply with these orders.
Medical
The parents:
(a)Immediately inform the other in the event that the Children are involved in any accident requiring medical attention or suffer from any illness requiring medical attention or are prescribed any medication.
(b)Forthwith inform the other in writing of any medical or other health practitioner with whom the Children are scheduled to consult, or have consulted, and authorise the other parent to make all reasonable enquiries of such practitioner in respect of matters concerning the Children’s health.
The parents be at liberty to provide a copy of these orders and this Judgment to Ms D for the purpose of her continuing to counsel the Children or either of them.
Education
The parents do all acts and things and sign all documents necessary for:
(a)Y to attend E School from the commencement of Year 7.
(b)X to continue to attend.
Each parent is at liberty to:
(a)Communicate directly with any school or education provider or extra-curricular institution attended by the Children.
(b)Have access to any information usually provided to parents.
(c)Attend any school, educational and extra-curricular activities that parents are usually able to attend.
Explanation of Parenting Orders to the Children
The Independent Children’s Lawyer or Counsel for the Independent Children’s Lawyer and Ms G meet with the Children forthwith on the day these orders are published at Level 5, Commonwealth Law Courts, 305 William Street, Melbourne for the purpose of explaining the parenting orders to the Children (ICL Meeting) in the absence of both parties.
Pursuant to s. 68B(1) of the Family Law Act 1975 (Cth) the Husband and the Wife be and are hereby restrained by injunction from initiating communications to or accepting communications from the Children during the ICL Meeting.
Each parent pay one half of Ms G’s fees of and incidental to attending the Commonwealth Law Courts for the purpose of participating in the ICL Meeting.
The Independent Children’s Lawyer to provide Ms G Ms G with a copy of this Judgment to facilitate the ICL Meeting.
The Husband, his servants and/or agents be and are hereby restrained by injunction from attending upon Level 5 this day, and the Husband is directed to leave the Court’s premises forthwith.
The Wife collect the Children from the child minding service on Level 5, Commonwealth Law Courts Building, 305 William Street, Melbourne upon being advised by the Independent Children’s Lawyer or Counsel for the Independent Children’s Lawyer that the ICL Meeting has concluded.
Property Orders
The parties forthwith do all acts and things and sign all documents necessary to cause the proceeds of sale of the real property situated at and known as Property A in the State of Victoria, held on trust by the former solicitors for the Husband, Bayside Family Law Solutions, together with interest earned on that sum, to be paid to the Wife.
Personal Property
Each party be solely entitled to the exclusion of the other to all the other property (including choses-in-action) in the possession of such party as at the date of these orders and without limiting the generality of the foregoing:
(a)The Wife shall retain:
(i)The Motor Vehicle M;
(ii)Her shareholdings;
(iii)The furniture personal possessions and like chattels in her home on the date of these orders; and
(iv)All monies standing to her credit in any bank account in her sole name.
(b)The Husband shall retain:
(i)The Motor Vehicle N and within 28 days he shall discharge the loan encumbering the vehicle and in default, the vehicle be listed for sale to be conducted by the Wife and the proceeds applied:
A.Firstly, in discharge of any encumbrance on the vehicle.
B.Secondly, in payment of the balance to the Husband.
(ii)Subject to order 29, the furniture, personal possessions and like chattels in his home on the date of these orders;
(iii)All monies standing to his credit in any bank account in his sole name;
(iv)The balance standing to his credit in his H Shares and J Shares accounts.
Within seven days the Husband shall make available for collection by the Wife in good condition:
(a)Roof racks for the Motor Vehicle M referred to in order 28(a)(i).
(b)Bicycle 1.
(c)Bicycle 2.
(d)Two of the four bike racks owned by the parties, at the Husband’s election.
(e)The Wife’s camp chair.
(f)All of the Wife’s clothing and other belongings personal to her that remained at the former matrimonial home.
K Pty Ltd
Within 28 days, the parties do all acts and things and sign all documents necessary to wind up the company K Pty Ltd at their joint expense.
General Property Orders
Unless otherwise specified in these orders and save for the purposes of enforcing any monies due under these or any subsequent orders:
(a)Monies standing to the credit of the Husband and Wife in any bank account in their joint names is to be divided equally between them forthwith and the Husband and Wife do all acts and things and sign all documents necessary to close any joint account following the distribution of funds.
(b)Each party forgo any claims they may have to any superannuation benefits belonging to or earned by the other.
(c)All insurance policies shall remain the sole property of the owner named on the policy.
(d)Each party shall be solely liable for and pay and indemnify the other against any liability in their sole name, including any liability encumbering any item of property to which that party is entitled pursuant to these orders.
(e)Any joint tenancy of the parties in any real or personal estate is hereby expressly severed.
Miscellaneous
All extant applications are otherwise dismissed.
The order of Judge C. E. Kirton QC, dated 3 August 2018 appointing the Independent Children’s Lawyer be discharged.
Pursuant to r. 21.15 of the Federal Circuit Court Rules 2001 (Cth), the Court certifies that it was reasonable for the parties to employ an advocate.
The Wife file and serve any submissions in relations to costs, including reserved costs, on or before 14 April 2020.
The Husband file and serve any submissions in relation to costs on or before 4 May 2020.
Pursuant to r. 21.02(1)(c) of the Federal Circuit Court Rules 2001 (Cth) the matter be adjourned to the Federal Circuit Court of Australia on 15 May 2020 at 10:00 am for Mention.
AND THE COURT NOTES THAT:
A.On 18 March 2020 the Husband’s solicitors, Bayside Family Law Solutions, filed a Notice of Withdrawal as Lawyer.
B.Pursuant to ss. 65DA(2) and 62B of the Family Law Act 1975 (Cth) the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.
IT IS NOTED that publication of this judgment under the pseudonym Iannello & Iannello (No.5) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 3008 of 2018
| MS IANNELLO |
Applicant
and
| MR IANNELLO |
Respondent
REASONS FOR JUDGMENT
Introduction
These are property and parenting proceedings between the Applicant (Wife) and the Respondent (Husband). The parenting proceedings concern two children, X (X), born in 2005 and Y (Y), born in 2008 (Children).
In this proceeding, the Court has been required to deliver five interim determinations after contested interim hearings, four of which have been delivered with written reasons in:
a)Iannello & Iannello [2018] FCCA 3528 (Iannello & Iannello (No.1));
b)Iannello & Iannello (No.2) [2018] FCCA 3662 (Iannello & Iannello (No.2));
c)Iannello & Iannello (No.3) [2018] FCCA 3752 (Iannello & Iannello (No.3)); and
d)Iannello & Iannello (No.4) [2018] FCCA 3842 (Iannello & Iannello (No.4)).
Issues in Dispute
The following parenting issues are in dispute between the parties:
a)The effect (if any) of the Husband’s cognitive impairment on his ability to provide for the needs of the Children, including their emotional and intellectual needs.
b)The allocation of parental responsibility.
c)Who the Children should live with.
d)The time the Children should spend with the parent with whom they are not living.
e)Which school X should attend.
The following property issues are in dispute between the parties:
a)The weight to be attributed to the contributions of each party at the commencement of the relationship and during the relationship.
b)Whether there should be an adjustment in favour of either party pursuant to any of the factors relevant to s.79(4) and s.75(2) of the Family Law Act 1975 (Cth) (Act).
Synopsis
I have determined that in relation to parenting:
a)The Wife have sole parental responsibility for the Children.
b)The Children live with the Wife.
c)The Children spend time with the Husband:
i)During school term time from after school on Friday (or 4:00pm on a non-school day) to before school on Tuesday (or 9:00 am on a non-school day) each alternate week;
ii)For half of the school term and the long summer holidays, alternating between the first half and the second half of the holidays;
iii)On special days which include the Christmas period between 24 to 26 December and Father’s Day.
d)The Children spend time with the Wife on special days, which include the Christmas period between 24 to 26 December, Orthodox Christmas and Easter and Mother’s Day.
I have determined that in relation to property:
a)The proceeds of sale of the former matrimonial home at Property A (Property A Property), held on trust by Bayside Family Law Solutions, together with interest earned thereon, be paid to the Wife.
b)Each party be entitled to the property in their possession (including choses-in-action) and that:
i)The Wife shall retain: the Motor Vehicle M; her shareholdings; the furniture, personal possessions and like chattels in her home; all moneys standing to her credit in any bank account in her sole name;
ii)The Husband shall retain:
A.The Motor Vehicle N and within 28 days he shall discharge the loan encumbering the Motor Vehicle N and in default, the Motor Vehicle N be listed for sale to be conducted by the Wife and the proceeds applied:
a. Firstly in discharge of any encumbrance on the Motor Vehicle N.
b. Secondly in payment of the balance to the Husband.
B.Save for the items referred to in sub-paragraph (c), the furniture, personal possessions and like chattels in his home;
C.All moneys standing to his credit in the bank account in his sole name; and
D.The balance standing to his credit in his H Shares and J Shares accounts.
c)Within seven days the Husband make available for collection by the Wife in good condition various chattels.
d)The parties do all things necessary to wind up the company K Pty Ltd at their joint expense.
e)All moneys standing to the credit of the Husband and the Wife in any bank account in their joint names be divided equally between them.
f)Each party to forego any claims they may have to superannuation benefits belonging to or earned by the other.
g)All insurance policies remain the sole property of the owner named on the policy.
h)Each party shall be solely liable and pay and indemnify the other against any liability in their sole name.
Background
I have previously set out the history of the parties’ marriage and relationship in Iannello & Iannello (No.1)[1].
[1] At [3]-[10].
Procedural History
The Wife initially commenced the proceedings in this Court on 20 March 2018 seeking parenting orders. In her Initiating Application the Wife sought interim orders that:
a)The parties have equal shared parental responsibility for the Children.
b)The Children live with the parties on an equal shared care basis, with changeover to occur at the conclusion of school each Friday.
c)The parties obtain a Family Report.
d)The Husband attend upon a psychiatrist for the purpose of undergoing a cognitive function assessment, to identify the effect (if any) of his cognitive impairment on his ability to provide for the needs of the Children, including their emotional and intellectual needs[2].
[2] Wife’s Initiating Application, filed 20.3.18, Interim or procedural orders sought, [1] – [4].
The Wife filed an affidavit in support of her Initiating Application[3] and a Notice of Risk[4]. The Wife’s Notice of Risk made no allegations of child abuse or family violence against the Husband.
[3] Wife’s Affidavit, filed 20.3.18.
[4] Wife’s Notice of Risk, filed 20.3.18.
On 18 April 2018 the Husband filed a Notice of Address for Service indicating that he was represented by NN Lawyers. On 23 April 2018 the Husband filed a Response (Response) in which he sought interim orders that included:
a)The parties have equal shared parental responsibility for the Children.
b)The Children live with the Father.
c)The Children spend time with the Wife during school term time:
i)Each alternate weekend from 6:00 pm Friday until the commencement of school on Monday; and
ii) Each Wednesday evening from 6:00 pm until 8:30 pm.
d)The Children spend time with each of the parents during the school holidays on a week about basis, provided that the Wife have leave from her employment and was in substantial attendance.
On 23 April 2018 the Husband filed an affidavit in support of his Response (Husband’s April 2018 Affidavit) and a Notice of Risk, in which he made allegations that the Wife had committed family violence against him in the presence of the Children (Husband’s Notice of Risk). The Husband’s Notice of Risk and the Husband’s April 2018 Affidavit disclosed that on 26 March 2018 the Husband had obtained an Interim Intervention Order at the Suburb L Magistrates Court against the Wife (Interim Intervention Order)[5]. In the Husband’s April 2018 Affidavit the Husband deposed that the Interim Intervention Order prevented the Wife from approaching or contacting him or attending within 200 meters of the former matrimonial home[6].
[5] Husbands April 2018 Affidavit, at [8] and [9]; Husband’s Notice of Risk, at [3(a)].
[6] Husband’s April 2018 Affidavit, at [8].
This proceeding first came before the Court in the Duty List on 26 April 2018. It was then adjourned to 4 May 2018 for an Interim Hearing in relation to the living arrangements for the Children.
On 2 May 2018 the Wife filed an affidavit (Wife’s May 2018 Affidavit) in which the Wife deposed that the Husband had been granted the Interim Intervention Order on an ex parte basis[7]. The Wife denied each of the allegations made by the Husband in the Husband’s April 2018 Affidavit, that she had committed family violence[8]. The Wife also detailed her unsuccessful attempts to spend time with the Children after leaving the former matrimonial home[9].
[7] Wife’s May 2018 Affidavit, at [4].
[8] Wife’s May 2018 Affidavit, at [3], [4] and [12]-[29].
[9] Wife’s May 2018 Affidavit, at [40(a)-(k)].
This matter next came before the Court on 4 May 2018 for the Interim Hearing in relation to the living arrangements for the Children. The Husband filed a further affidavit that day (Husband’s May 2018 Affidavit). Both the Husband and Wife were represented by Counsel.
On 4 May 2018 the Court made interim orders that:
a)The parties have equal shared parental responsibility for the Children.
b)The Children live with the parties on a week about basis, with changeover to occur at the conclusion of school (or 4:00 pm on a non-school day) each Friday, to commence that day, save that the Children shall commence the week with the Wife on 5 May 2018 at 9:00 am (May 2018 Week About Order).
c)When school was not available as a changeover venue:
i)That for the purpose of the Children commencing time with the Wife, changeover to occur at the Husband’s residence, with the Wife not to alight from the car;
ii)That the conclusion of changeover to occur at the Wife’s residence, with the Husband not to alight from the car.
d)The parties to attend upon Ms G on 5 June 2018 for the purpose of the preparation of a Family Report.
e)The Wife pay for the Family Report (at $5,500) in the first instance and be reimbursed as to half of the cost of the Family Report upon conclusion of the anticipated property proceedings.
f)The Husband provide to the Wife by 5 June 2018 a completed cognitive report and that the consolidated report prepared in 2017 would be sufficient and that such report be made available to Ms G.
g)The Wife file and serve an Amended Initiating Application to include a property application by 25 May 2018, together with a Financial Statement and the Husband file an amended Response by 15 June 2018, together with a Financial Statement.
h)The parties have leave to produce to the Magistrate presiding at the hearing of the Husband’s application for an intervention order against the Wife on 4 June 2018 (or such other date as the application may be adjourned to), the affidavits deposed to by the parties as at 4 May 2018 and filed in this proceeding.
i)The matter be adjourned to 3 August 2018 at 9.30 am for Mention.
The Wife filed her Amended Initiating Application on 30 May 2018 (Amended Initiating Application). In relation to parenting orders the Wife sought final orders that included:
a)The parties have equal shared parental responsibility for the Children.
b)The Children live with the parties on a week about basis, with changeover to occur at the conclusion of school (or 4:00 pm on a non-school day) each Friday.
c)The Wife be excused from further particularising her application pending:
i) Preparation of a Family Report by Ms G; and
ii)Production by the Husband of his completed cognitive report, in accordance the interim orders made on 4 May 2018[10].
[10] Order 7 of the Orders made on 4 May 2018.
The Wife also sought in the Amended Initiating Application interim and final property orders. The Wife sought interim property orders that included:
a)The parties do all things necessary to pay to the Husband from the HSBC account ending …36 (Offset Account) the sum of $20,000, to be characterised at trial.
b)The Property A Property be sold and the net proceeds be held on trust pending further order.
c)The parties do all acts and things necessary to sell the parties’ caravan and all associated accessories (Caravan) and that the proceeds of sale be applied:
i)Firstly, to discharge the Bank of Melbourne loan encumbering the Husband’s Motor Vehicle N;
ii)Secondly, the balance (if any) be deposited into the Offset Account.
d)In relation to any claim the Husband may have arising from his October 2012 accident:
i)He instruct Maurice Blackburn to cause all communications from that firm to the Husband to be copied contemporaneously to the Wife;
ii)He cause all communications from him to be copied contemporaneously to the Wife; and
iii)He cause any payment to him in relation to any claim(s) to be paid to his solicitors to be held on trust in an interest-bearing account in the joint names of the parties pending further order.
e)Within 21 days of request by the Wife, the Husband produce to the Wife all documents requested by her in order to complete her income tax returns for the 2013 financial year and subsequent financial years.
f)Within seven days the Husband do all acts and things and sign all documents to authorise and direct Maurice Blackburn to make available to the Wife’s legal practitioners by prior arrangement, the complete file in relation to his personal injury and associated claim(s) and to notify the Wife he has complied with the order.
g)Leave be granted to the parties to inspect the Court file in relation to the Husband’s property proceedings with his first wife.
h)The Husband forthwith do all acts and things and sign all documents necessary to transfer to an account nominated by the Wife the use of her personal mobile phone number.
In the Amended Initiating Application the Wife sought final property orders that there be a just and equitable adjustment of the parties’ property and superannuation.
On 30 May 2018 the Wife also filed a Financial Statement and an affidavit (Wife’s 30 May 2018 Affidavit) in support of the Amended Initiating Application. The Wife’s 30 May 2018 Affidavit related to property matters only.
On 4 June 2018 the Husband’s application for an intervention order was listed for Mention at the Suburb L Magistrates’ Court. Orders were made adjourning the application to a directions hearing on 27 August 2018 and for:
a)The Husband to file further and better particulars of his allegations and any witness summaries, statements and copies of exhibits by 30 July 2018; and
b)The Wife to file any response to the Husband’s further and better particulars, together with her witness summaries, statements and copies of exhibits by 13 August 2018[11].
[11] Wife’s Affidavit, filed 26.3.19, at [27].
On 21 June 2018 the Husband’s solicitors caused to be issued subpoenas for the production of documents by:
a)Telstra Corporation Limited, in relation to the Wife’s telephone records for two mobile telephone numbers, for the period from 1 July 2016 to the date of the subpoena (Telstra Subpoena). Information was also sought relating to the geolocation of the mobile telephones in relation to mobile telephone towers.
b)Westpac Banking Corporation, in relation to the Wife’s banking records for the period from 1 July 2013 to the date of the subpoena.
c)The employer, relating to the Wife’s employment with the Employer BBB, including pay records, for the period from 1 July 2016 to the date of the subpoena.
d)The NAB, in relation to the Wife’s banking records for the period from 1 July 2013 to the date of the subpoena.
On 28 June 2018 the Husband filed an Amended Response to Initiating Application (Amended Response). The Husband sought interim and final property orders in the Amended Response. The Husband sought interim property orders that:
a)Within 14 days the parties do all acts and things and sign all documents necessary to pay to the Husband’s solicitors the sum of $20,000, with such sum to be characterised at trial.
b)The Wife pay to the Husband the sum of $1,000 per week spousal maintenance.
c)The parties be restrained by injunction from withdrawing any further funds from the Offset Account unless agreed between them in writing.
d)The Wife be restrained from dealing with any work bonus received by her and immediately deposit any work bonus into the Offset Account upon receipt.
e)The Wife provide discovery of various documents[12].
f)The parties do all things necessary to refinance the mortgage secured over the Property A Property to interest only payments.
g)The Wife pay the Husband’s costs of issuing the subpoenas to the NAB and the Westpac Banking Corporation in the sum of $1,844.
[12] Amended Response, Application for Interim Property Orders, at [5(a)-(n)].
On 28 June 2018 the Husband also filed a Financial Statement and an affidavit in support of his Amended Response (Husband’s June 2018 Affidavit). In the Husband’s June 2018 Affidavit he deposed that he did not consent to the interim sale of the Property A Property and that the sale of the Property A Property should remain a trial issue[13]. The Husband also deposed that he did not consent to the interim sale of the Caravan[14].
[13] Husband’s June 2018 Affidavit, at [32].
[14] Husband’s June 2018 Affidavit, at [34].
On 3 July 2018 the Wife filed a Notice of Objection to the Telstra Subpoena.
On 20 July 2018 the Husband’s solicitors caused to be issued a subpoena for the production of documents by F School, for all documents in relation to X for the period from 1 January 2018 to the date of the subpoena.
On 30 July 2018 the Husband filed and served his statement of further and better particulars in relation to his intervention order application at the Suburb L Magistrates’ Court[15].
[15] Wife’s Affidavit, filed 26.3.19, at [32].
On 31 July 2018 the Husband filed a Further Amended Response to Initiating Application (Further Amended Response) seeking interim parenting orders that:
a)The Children be represented by an Independent Children’s Lawyer.
b)The parties engage in reportable family therapy with the Children, with the Wife to meet the cost at first instance and any adjustment of the Husband’s share to be determined at trial.
c)The May 2018 Week About Order be discharged[16].
d)The Children live with the Husband.
e)The Children spend time with the Wife as follows:
i)In week one of a two week cycle, from the conclusion of school on Friday (or 3:30 pm if a non-school day), until the commencement of school on Monday (or 9:00 am if a non-school day) (3 nights); and
ii)In week two of a two week cycle, from the conclusion of school on Thursday (or 3:30 pm if a non-school day), until the commencement of school on Friday (or 9:00 am if a non-school day) (1 night).
[16] Order 4 of the Orders made on 4 May 2018.
On 31 July 2018 the Husband also filed an affidavit in support of the Further Amended Response (Husband’s July 2018 Affidavit). In the Husband’s July 2018 Affidavit the Husband deposed that the Children, in particular X, had not coped well with the week about time spent between their parents, since the May 2018 Week About Order. The Husband deposed that as a result he was concerned that the Childrens’ welfare and safety was at risk[17]. The Husband provided an account of a verbal exchange between himself and X which occurred during an incident on the morning of 26 May 2018, whilst X was making pancakes[18]. The Husband deposed that he had subsequently received a letter from the Wife’s solicitors on 20 June 2018, alleging that the Wife had overheard this verbal exchange between himself and X on 26 May 2018, as a result of an accidental “pocket dial” on X’s mobile telephone (Pocket Dial Incident). The letter from the Wife’s solicitors alleged that during the Pocket Dial Incident the Husband had involved X in the parenting dispute and that he had denigrated the Wife[19]. The following day, on 21 June 2018 X refused to stay overnight with her Mother. The Husband deposed to the events of the evening of 21 June 2018[20]. The Husband further described the complaints that the Children had made to him since the May 2018 Week About Order was made[21].
[17] Husband’s July 2018 Affidavit, at [8].
[18] Husband’s July 2018 Affidavit, at [8(b)-(g)].
[19] Husband’s July 2018 Affidavit, at [8(a)].
[20] Husband’s July 2018 Affidavit, at [8(h)].
[21] Husband’s July 2018 Affidavit, at [8(n) and (o)].
In the Further Amended Response the Husband also sought additional interim property orders, which may be summarised as follows:
a)The Wife reinstate the Husband’s full private health insurance and membership with the O Health Fund pursuant to the Wife’s family policy and the Wife refrain from removing the Husband without his prior consent.
b)In addition to weekly periodic spousal maintenance of $1,000, the Wife also pay:
i)The hire purchase repayments, the comprehensive car insurance and the registration costs for the Motor Vehicle N;
ii)The home and contents insurance for the Property A Property;
iii)The insurance payments for the Caravan;
iv)The Husband’s private health insurance with the O Health Fund.
c)The Wife within 14 days do all things necessary to complete and lodge all outstanding tax returns and provide copies of the completed tax returns and notices of assessment to the Husband’s solicitors.
On 3 August 2018 at the Mention of this proceeding:
a)The proceeding was listed for 13 August 2019 at 9:00 am to hear the Wife’s objection to the Telstra Subpoena.
b)The proceeding was listed for 27 September 2018 at 10:00 am for an Interim Hearing, to hear the Husband’s claim for the payments set out under the headings “Property”, “Interim payment” and “Spousal maintenance” in paragraphs 1 to 4 of the Further Amended Response (Spousal Maintenance Claim).
c)The Independent Children’s Lawyer Children (ICL) was appointed.
d)The proceeding was adjourned for Mention on 26 November 2018 at 9:30 am.
e)The proceeding was listed for Final Hearing on 20 May 2019 at 10:00 am with an estimated hearing time of four days.
On 3 August 2018 orders were also made by consent, which may be summarised as follows:
a)The Wife within 48 hours reinstate the Husband’s full private health insurance and membership with O Health Fund pursuant to the Wife’s family policy and the Wife refrain from removing the Husband from the health insurance without his prior written consent.
b)The Wife pay the following expenses other than from the Offset Account:
i)The hire purchase repayments, comprehensive car insurance payments and registration costs for the Motor Vehicle N;
ii)The home and contents insurance payments for the Property A Property;
iii) The insurance payments for the Caravan;
iv)The Husband’s private health insurance with O Health Fund at the full level of cover.
c)The parties continued to be restrained by injunction from withdrawing any further funds from the Offset Account, save for the direct debits for the mortgage repayments for the Property A Property.
d)The Wife provide to the Husband’s solicitors in November 2018, or when obtained by her, evidence of any work bonuses received by her in the course of her employment.
e)The Wife provide disclosure of specified documents within 14 days of the orders[22].
[22] Orders 3 August 2018, Consent Orders, Order 5(a)-(e).
On 6 August 2018 the Wife’s solicitors caused to be issued a subpoena for the production of documents by Maurice Blackburn, relating to the Husband’s claim for compensation arising out of the injury he suffered in 2012 (Maurice Blackburn Subpoena).
The ICL filed a Notice of Address for Service on 6 August 2018.
On 7 August 2018 the Husband’s solicitors caused to be issued a second subpoena for the production of documents by Telstra Corporation Limited (Second Telstra Subpoena). The documents sought in the Second Telstra Subpoena were of the same description as those sought in the Telstra Subpoena, however they related to a different mobile telephone number.
On 10 August 2018 the Husband filed a Notice of Objection to the Maurice Blackburn Subpoena.
On 13 August 2018 the Wife filed an affidavit (Wife’s August 2018 Affidavit). In the Wife’s August 2018 Affidavit the Wife deposed that she had recorded part of X’s “pocket dial” call on 26 May 2018 and also made a contemporaneous note of the discussion between X and the Husband that had not been recorded. The recorded exchange between the Husband and X on 26 May 2018 was reproduced in the Wife’s August 2018 Affidavit[23]. The Wife’s note was also produced[24]. The Wife also expressed concern that she believed that X’s behaviour had deteriorated towards her immediately after her solicitors had written to the Husband’s solicitors concerning the Husband’s behaviour during the Pocket Dial Incident. The Wife also expressed concern that the Husband was telephoning the Children on too many occasions whilst they were in her care and that she believed that this was having a detrimental effect on X’s behaviour.
[23] Wife's August 2018 Affidavit, at [10] and [11].
[24] Wife's August 2018 Affidavit, at [9] and Annexure “I-1”.
On 13 August 2018 the Court heard the parties’ dispute concerning:
a)The Wife’s objection to the Telstra Subpoena and the Second Telstra Subpoena;
b)The Husband’s objection to the Maurice Blackburn Subpoena.
On 13 August 2018 both the Husband and the Wife were represented by Counsel and the ICL appeared at the hearing. Orders were made that day that:
a)The Telstra Subpoena and the Second Telstra Subpoena be set aside;
b)In relation to the Maurice Blackburn Subpoena:
i)Within 28 days from the date of the order the Husband file and serve an affidavit from the partner Maurice Blackburn who had the conduct of the Husband’s compensation claim arising out of the injuries suffered by the Husband on or about October 2012 deposing to the following matters:
A.When the compensation claim was commenced and the jurisdiction or jurisdictions commenced in;
B.The amount of moneys paid to the Husband to date, when the monies were paid, what the monies were received for and from who and how they were disbursed;
C.The stage the compensation claim was presently at;
D.The likelihood of further payments to the Husband, what such payments would be for, when the Husband was likely to receive further monies and the amount;
E.Annexing all reports in relation to any claim for any kind arising out of the injury suffered by the Husband on or about October 2012.
ii) The Maurice Blackburn subpoena otherwise be set aside.
c)The parties’ costs be reserved.
Reasons for decision were subsequently delivered in Iannello & Iannello (No.1).
On 24 August 2018 the Wife filed her response to the Husband’s statement of further and better particulars in relation to his intervention order application at the Suburb L Magistrates’ Court[25].
[25] Wife’s Affidavit, filed 26.3. 2019, at [39].
On 27 August 2018 the Wife filed a Notice to Admit Facts. The facts sought to be admitted related primarily to the Husband’s expenses and his receipt and non-disclosure of the sum of $161,221.20 on or about 8 March 2018. The Husband responded by letter but did not file and serve a Notice Disputing Facts[26].
[26] Wife’s Affidavit, filed 26.3. 2019, at [40].
On 11 September 2018 the parties and the Children met with Ms G for the purpose of the preparation of a Family Report.
On 20 September 2018 the Wife filed a Financial Statement and an affidavit deposing to financial matters relating to the Husband’s application for spousal maintenance[27].
[27] Wife’s Affidavit, filed 20.9.18, at [3].
On 25 September 2018 the Husband filed a Further Amended Response to Initiating Application (Second Further Amended Response). The Second Further Amended Response:
a)Abandoned the Spousal Maintenance Claim, being the Husband’s claim for payment of a lump sum of $25,000, periodic spousal maintenance of $1,000 a week and the payment of other expenses.
b)Made an application for interim property orders (Interim Property Orders) that:
i)The Husband retain his shareholdings for his sole use and benefit, with such sum to be characterised trial.
ii)In the event the Wife became eligible for an employment bonus from her employment with her employer:
A.The Wife do all things necessary to receive the highest cash component payable by her employer when the bonus is received;
B.Upon being notified of her entitlement to the bonus, the Wife notify the Husband’s solicitors forthwith, including the amount to be received and the time of the payment;
C.The Wife do all things as may be required to pay the Husband via his solicitors 50% of the bonus, with the characterisation of such funds to be determined at trial.
On 25 September 2018 the Husband also filed a Financial Statement and an affidavit in support of the Second Further Amended Response (Husband’s September 2018 Affidavit).
On 27 September 2018 the matter came before the Court for an Interim Hearing, where the Husband pursued his application for the Interim Property Orders sought in his Second Further Amended Response (Interim Property Dispute). Both parties were represented by Counsel. The ICL appeared at the commencement of the hearing, however was otherwise excused from further attendance, as the Interim Hearing related only to the Interim Property Dispute. Judgment in relation to the Interim Property Dispute was reserved.
On 18 October 2018 Ms G released her Family Report to the parties, dated 18 October 2018 (First Family Report)[28].
[28] Affidavit of the Wife, filed 26.3.19, at [46]; Affidavit of Ms G, filed 19.11.19, at [4] and Annexure “1”.
The parties and the ICL participated in a mediation on 22 October 2018 with Mr Melilli of Counsel as mediator[29]. The matter did not resolve either the parenting or property matters in dispute, however the parties were able to agree upon some interim consent orders.
[29] Affidavit of the Wife, filed 21.11.18, at [2].
On 23 October 2018 an affidavit of Mr B was filed on behalf of the Husband (Mr B Affidavit). Mr B deposed that he was an Associate at Maurice Blackburn Lawyers and that he had the care and conduct of the Husband’s claim for compensation pursuant to the Accident Compensation Act 1985 (Vic) (Accident Compensation Act). Mr B deposed that the Husband’s claim arose out of an injury suffered by the Husband in the course of his employment with Employer P on or about 16 October 2012[30]. Mr B exhibited to his affidavit a number of medical reports and other medical information relating to the Husband. Mr B deposed that they were not reasonably able to estimate when the Husband’s Impairment Benefit Claim would be finalised or the amount the Husband would be likely to recover[31]. Mr B also deposed that they were not reasonably able to estimate the timing of any claim by the Husband for Common Law Damages pursuant to s.134AB of the Accident Compensation Act or the amount of any award of damages[32].
[30] Mr B Affidavit, at [1].
[31] Mr B Affidavit, at [6].
[32] Mr B Affidavit, at [7].
On 26 October 2018 orders were made by consent in Chambers. These orders may be summarised as follows:
a)The parents do all things necessary to arrange for X to attend upon a psychologist nominated by the ICL the purposes of confidential counselling.
b)For the purposes of the previous order:
i)The parent with the care of X on the date of any appointment be responsible for arranging for her transportation to and from the appointment;
ii)The parties be permitted to use the funds from the Offset Account to cover the cost of counselling, after any health insurance or mental health plan rebate;
iii)The ICL be permitted to provide to the psychologist a copy of the First Family Report.
c)Within 14 days the parties do all things and sign all documents necessary to list the Property A Property for sale with Mr Q of R, estate agents.
d)There be terms and conditions of the sale of the Property A Property, save as otherwise agreed that:
i)The reserve price be set at $1.1 million;
ii)The sale be by public auction and in the event of failure to sell at public auction, by private sale;
iii)The settlement period not be more than 90 days;
iv)All other terms and conditions of the sale be as agreed between the parties and in default of agreement, as nominated by the President for the time being of the Real Estate Institute of Victoria or their nominee.
e)Pending the sale of the Property A Property, the Husband have the sole right to occupy the Property A Property, save that he must:
i)Vacate it, leaving it in good condition not less than 10 days before the settlement date endorsed on the contract of sale;
ii)Maintain the Property A property in a neat, tidy and good condition and comply with all the reasonable requests for the selling agent as to the presentation of the property for sale.
f)The Husband and the Wife comply with the requests of the selling agent as to any works to be undertaken for the purposes of the sale, with such costs to be paid at settlement where possible.
g)Upon settlement of the Property A Property, the balance of the net proceeds of sale be held on trust in an interest-bearing account until further order or agreement in writing.
On 19 November 2018 an affidavit of Ms G was filed by the ICL. This affidavit annexed the First Family Report[33].
[33] Affidavit of Ms G, filed 19.11.18, Annexure “1”.
On 21 November 2018 a Notice of Address for Service was filed indicating that Bayside Family Law Solutions now acted on behalf of the Husband.
On 21 November 2018 the Wife filed an Application in a Case (Wife’s Application in a Case) and an affidavit in support of the Wife’s Application a Case. The Wife’s Application in a Case was returnable on the next Mention date of this matter on 26 November 2018. The Wife’s Application in a Case sought interim parenting orders that:
a)The orders made on 4 May 2018 that the parties have equal shared parental responsibility for the Children be discharged[34].
b)The Wife have sole parental responsibility in relation to X, in relation to X’s attendance upon a counsellor in accordance with the interim orders made on 26 October 2018.
c)The parties otherwise have equal shared parental responsibility for the Children.
d)Pursuant to s.68B of the Act, the parties be restrained by injunction from initiating communication to, or accepting communication from the Children while the Children were not living with them and the ICL forthwith meet with the Children to explain this order to them.
[34] Order 2 of the Orders 4 May 2018.
The following interim property orders were sought in the Wife’s Application in a Case:
a)Pursuant to s.106A of the Act, the Wife or alternatively a Registrar of the Court be appointed to execute all deeds or instruments in the name of the Husband necessary to give effect to the sale of the Property A Property pursuant to the interim orders made on 26 October 2018 and further to do all acts and things necessary to give operation to any such deed or instrument.
b)Within 24 hours the Husband do all acts and things and sign all documents necessary to transfer the mobile phone number of the Wife to her control.
c)Costs.
When the matter came before the Court on 26 November 2018 both parties were represented by Counsel and the ICL also appeared at the hearing. After hearing submissions in relation to the Wife’s Application in a Case Judgment was reserved.
On 12 December 2018 Judgment in relation to the Wife’s Application in a Case was delivered in Iannello & Iannello (No.2). On 12 December 2018 it was ordered that:
a)The order made on 4 May 2018 that the parties have equal shared parental responsibility for the Children be discharged[35].
b)The Wife have sole parental responsibility in relation to X, in relation to X’s attendance upon a counsellor in accordance with the interim orders made on 26 October 2018.
c)The parties otherwise have equal shared parental responsibility for the Children.
d)Pursuant to s.68B of the Act the parties be restrained by injunction from initiating communication to, or accepting communication from the Children while the Children were not living with them and the ICL forthwith meet with the Children to explain the order to them.
e)Pursuant to s.106A of the Act, a Registrar of the Court be appointed to execute all deeds or instruments in the name of the Husband necessary to give effect to the sale of the Property A Property pursuant to the interim orders made on 26 October 2018 and further to do all acts and things necessary to give operation to any such deed or instrument.
f)By consent within 24 hours the Husband do all acts and things and sign all documents necessary to transfer the mobile phone number of the Wife to her control, at her expense if any.
g)The costs of the parties and the ICL of and incidental to the Wife’s Application in a Case be reserved.
[35] Order 2 of the Orders 4 May 2018.
On 19 December 2018 Judgment in relation to the Interim Property Dispute was delivered in Iannello & Iannello (No.3). On 19 December 2018 it was ordered that:
a)The Husband retain the shares referred to in Part 1 of his Financial Statement filed on 25 September 2018 for his sole use and benefit, by way of partial property settlement pursuant to ss.79 and 80(1)(h) of the Act.
b)The Husband’s application in relation to any employment bonus the Wife may receive in the future was dismissed.
c)The Husband pay the Wife’s costs of and incidental to the Interim Hearing on 27 September 2018, fixed in the sum of $3,619.38.
On 19 December 2018 orders were also made by consent for trial directions.
The Wife filed a Further Amended Initiating Application on 26 March 2019 (Further Amended Initiating Application). In relation to final parenting orders the Wife sought orders that included:
a)The Wife have sole parental responsibility for X in relation to X’s attendance upon a counsellor.
b)The parents otherwise have equal shared parental responsibility for the Children.
c)The Children live with the Wife.
d)The Children spend time with the Husband:
i)From after school on Friday (or 4:00 pm on a non-school day) to before school on Tuesday (or 9:00 am on a non-school day) each alternate week (4 nights);
ii)Such further or other times as may be agreed between the parents in writing.
e)The Children spend time with the parents as follows:
i)With the Wife for a two week period during the long summer holidays each year, such period to be nominated by the Wife on or before 30 November each year;
ii) At Catholic Christmas:
A.In 2019 and each alternate year thereafter:
a. With the Wife from 12:00 pm on 24 December to 12:00 pm on 25 December; and
b. With the Husband from 12:00 pm on 25 December to 12:00 pm on 26 December.
B.In 2020 and each alternate year thereafter:
a. With the Husband from 12:00 pm on 24 December to 12:00 pm on 25 December; and
b. With the Wife from 12:00 pm on 25 December to 12:00 pm on 26 December.
iii)With the Wife at Orthodox Christmas from 4:00 pm on Christmas Eve to 4:00 pm on Christmas Day.
iv)From after school on the Thursday before Easter to before school on the Tuesday following Easter:
A.With the Wife in 2019 and each alternate year thereafter; and
B.With the Husband in 2020 and each alternate year thereafter.
v)With the Wife from after school on Friday to before school Monday on the weekend that Orthodox Easter is celebrated, provided that sub-paragraph (iv)B herein will prevail in the event of a conflict.
f)If during the Children’s time with one parent (First Parent) for the time being, the Children or either of them attend the home of the other parent or any other place where the other parent may be from time to time, the other parent shall do all acts and things necessary to return the child or Children to the First Parent immediately.
g)When school is not available as a changeover venue, the parent with whom the Children are concluding their time deliver the Children to the residence of the other parent.
h)Pursuant to s.68B(1) of the Act the Husband be restrained by injunction from:
i)Initiating communication to, or accepting communication from, the Children while the Children are not living with him; and
ii)Doing any act or thing to prevent the Wife from communicating with the Children or to discourage the children from accepting communication from the Wife, while the Children are living with him.
i)Each parent be at liberty to travel overseas with the Children during the Children’s time with them, on condition that the parent proposing to travel overseas with the Children provides the other party:
i)At least 28 days’ notice in writing of the travelling party’s intention to travel overseas with the Children;
ii)A copy of the Children’s itinerary including the departure and return dates;
iii)A copy of the Children’s return airline tickets;
iv)The country or countries the travelling party and the Children will be travelling to, the approximate dates on which the Children will arrive and depart each country and contact telephone numbers;
v)Within 14 days of a request by one parent, the other do all acts and things and sign all documents necessary to enable the issuing and/or renewal of the passport for the Children or either of them;
vi)The Wife retain the children’s passports and make them available to the Husband for the purposes of overseas travel, on condition that he return the passports to her within seven days of his return to Australia.
j)Each party:
i)Immediately inform the other in the event that the Children are involved in any accident requiring medical attention or suffer from any illness requiring medical attention or are prescribed any medication;
ii)Forthwith inform the other in writing of any medical or other health practitioner with whom the Children are scheduled to consult, or have consulted, and authorised the other parent to make all reasonable inquiries of such practitioner(s) in respect of matters concerning the Children’s health.
k)The parents do all acts and things necessary to enrol Y at F School for Year 7 in 2021.
l)The parents are each at liberty to:
i)Communicate directly with any school, education, or extracurricular institution(s) attended by the Children;
ii)Obtain copies of all documents that are ordinarily available to parents;
iii)Attend all school, educational and extra-curricular activities involving the Children that parents are ordinarily able to attend.
m)Mutual injunctions against denigration in the presence or hearing of the Children and discussing the family law proceedings in the presence or hearing of the Children.
This is not relevant consideration
Section 75(2)(j) the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party;
This is not a relevant consideration.
Section 75(2)(k) the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration;
This is not a relevant consideration.
Section 75(2)(l) the need to protect a party who wishes to continue that party’s role as a parent;
Both the Husband and the Wife will be able to continue their roles as parents.
Section 75(2)(m) if either party is cohabitating with another person - the financial circumstances relating to the cohabitation;
The Wife’s partner Mr Z earns a similar income to that of the Wife, being $190,000 as a professional. He does not earn bonuses. The Wife and her partner share expenses only in relation to the house that they are sharing. The expenses they share are rent, food, electricity and utilities. Mr Z otherwise has his own financial liabilities and commitments[399]. Mr Z has his own two sons to support. There is no further evidence before the Court as to the financial circumstances of the cohabitation.
Section 75(2)(n) the terms of any order made or proposed to be made under section 79 in relation to:
[399] Transcript T56:14-57:2.
(i) the property of the parties; or
(ii) vested bankruptcy property in relation to a bankrupt party;
I am satisfied that the orders that I intend to make under s.79 of the Act enable both parties to maintain themselves to the extent possible with the limited assets available in the asset pool.
Section 75(2)(naa) the terms of any order or declaration to be made, or proposed to be made, under Pt.VIIIAB in relation to:
(i) a party to the marriage; or
(ii) a person who is a party to a defacto relationship with a party to the marriage; or
(iii) the property of a person covered by subparagraph (i) and of a person covered by subparagraph (ii), or either of them; or
(iv) vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii);
This is not a relevant consideration.
Section 75(2)(na) any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage;
This is discussed in relation to s.79(4)(g) of the Act.
Section 75(2)(o) any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account;
The Husband lodged his Serious Injury Application on 18 November 2019. I refer to the discussion in relation to s.75(2)(b) of the Act.
Section 75(2)(p) the terms of any financial agreement that is binding on the parties to the marriage;
This is not a relevant consideration.
Section 75(2)(q) the terms of any Pt.VIIIAB financial agreement that is binding on a party to the marriage;
This is not a relevant consideration.
Conclusion as to Contribution
Counsel for the Husband submitted that Norman & Norman [2010] FamCAFC 66 supported the proposition that where there was an asset at the beginning of a relationship, such as a home and it was in existence at the end of the relationship, it was an important and significant contribution and it thereby deserved weight[400]. Counsel for the Husband submitted that in this case there should be a small adjustment in favour of the Husband on the basis of his initial contribution in relation to the Property A Property. Counsel submitted that otherwise the contributions of the parties during the relationship were equal.
[400] Transcript (12.12.19) T30:36-39; T167:34-37.
Counsel for the Wife submitted that the Husband’s initial equity of $50,000 in the Property A Property was negligible, given the following:
a)The Wife’s initial contribution of $12,500, which was transferred to the mortgage debt for the Property A Property.
b)The length of the marriage.
c)The Wife was a joint mortgagor, albeit not a registered proprietor.
d)The Wife through her employment at the Employer BBB had secured a mortgage for the Property A Property at advantageous rates.
e)The Wife applied all her earnings to family expenses, including the mortgage, whereas the Husband’s income, in part was applied to support his children from his previous marriage.
f)The Wife’s significant role as the sole income earner since the Husband’s compensation payments ceased.
Senior Counsel for the Wife relied on the recent decision in Jabour & Jabour [2019] FamCAFC 78 (Jabour & Jabour), where the Full Court said[401]:
We consider that the decisions in Baker and Bilous indicate that the Court in Williams somewhat overstated the importance of the increase in value of a piece of property at the expense of “the myriad of other contributions that each of the parties has made during the course of the relationship”[402].
[401] Jabour & Jabour [2019] FamCAFC 78, at [43].
[402] Williams & Williams [2007] FamCA 313 at [26].
Senior Counsel submitted that the evidence was that during the relationship, the parties each contributed to the extent of their capacities to do so until the Husband’s injury in 2012. After the Husband received the redundancy payment and the compensation payments, the Wife became the sole income earner. Thereafter the parties lived beyond their means. It was submitted that but for the efforts of the Wife, the Property A Property would have had to have been sold. The Wife’s significant financial contributions continued after separation. It was submitted that the Wife’s financial contributions while sole income earner should be attributed greater weight because the parties would have had no assets, but for the Wife’s efforts.
In relation to initial contribution, I prefer the submissions of Senior Counsel for the Wife, in light of the reasoning of the Full Court in Jabour & Jabour. The Husband’s initial equity in the Property A Property was about $38,000, taking into account the Wife’s contribution of $12,500. Over time with the “myriad of other contributions” this modest contribution eroded. I determine the initial contributions of the Husband and the Wife to have been equal.
Having considered the matters referred to in this judgment and the submissions of Counsel for the Husband and Senior Counsel for the Wife, I determine that the contributions during the relationship to have also been equal. I therefore determine the Wife’s contributions should be assessed as 50% and the Husband’s at 50%.
Conclusion as to Future Needs
I have taken into consideration the above matters, including but not limited to the following:
a)The Children will be living with the Wife.
b)The relatively young age of the Children.
I have also taken into consideration the Husband’s PI Claim and the unchallenged evidence of Mr Tobin SC that the net benefit the Husband could expect to receive from bringing a claim on a modest assessment is in the magnitude of $800,000[403]. Even if the Husband was not to receive such an amount, such an expectation eliminates the need for any significant adjustment for the Husband’s future needs.
[403] Tobin SC Affidavit, at [48].
Because the pool is small I must look at the reality of the parties’ financial positions rather than simply percentages. The Wife has no assets other than the Motor Vehicle M and her share in the proceeds of sale of the Property A Property. The Wife has the ability to earn an income, however she will bear the financial burden of maintaining the Children for the foreseeable future. The Wife also has significant debts arising as a result of this litigation.
After taking into account these competing considerations I am satisfied that there should be an adjustment in favour of the Husband of 4% for s.75(2) factors.
Adjustment of Interests
As a result of the findings made to contributions and future needs, I am satisfied it is just and equitable to make Orders adjusting property between the parties, so that the Wife is entitled to 46% of the total asset pool and the Husband is entitled to 54% of the total asset pool.
The Orders which I intend to make will result in the Wife receiving 29% of the non-superannuation asset pool and the Husband receiving 71% of the non-superannuation asset pool.
Conclusion
I have determined that the division of the assets will be achieved by the Wife retaining the proceeds of sale of the Property A Property in the sum of $205,666 (together with any interest accrued thereon), the Motor Vehicle M, her PP shares, the K Pty Ltd shares and the proceeds of sale of the shares that she sold post separation in the sum of $21,487. The Wife will be responsible for all liabilities, save for the loan relating to the Motor Vehicle N. The Wife will retain her superannuation in accordance with the Wife’s Property Proposal.
The Husband is to retain the Motor Vehicle N and discharge the loan within 28 days, failing which the vehicle is to be sold. The Husband is to otherwise retain the remaining notional assets. The Wife otherwise will not make any claim upon the proceeds of his PI Claim.
I am satisfied that the division of property is just and equitable.
I intend to make Orders accordingly.
Costs
The parties sought that applications for costs, including reserved costs, be made after Judgment is delivered.
The proceeding has been listed for Mention pursuant to r.21.02(1)(c) of the Federal Circuit Court Rules 2001 (Cth) accordingly.
I certify that the preceding five-hundred and nine (509) paragraphs are a true copy of the reasons for judgment of Her Honour Judge C. E. Kirton QC
Date: 23 March 2020
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